Why the Administration is stonewalling on its justifications for the NSA program

JB

This New York Times article notes that the Bush Administration is unwilling to provide the Office of Legal Counsel's original legal justifications for its NSA program, arguing that a memo released last month contains all the relevant legal arguments. If that is so, one wonders why it is so unwilling to release the original memos, like many other OLC memos that are publicly available.

One reason is that the memos contain classified material, but that material can be redacted. We are particularly interested in the legal reasoning, not the classified data.

Another reason is that the legal advice given to the President must remain confidential in order to encourage frankness by his lawyers. But that argument is undermined by the wide range of OLC memos that are publicly available as a matter of course, and also by the fact that the White House claims that the legal advice in that memo is the same as that contained in the January 2006 response. Indeed, if the President is directing his subordinates to act on legal advice that affects the civil liberties of American citizens, there is a strong argument that citizens have a right to know the basis of his reasoning that their rights are not being violated.

Another, more interesting possibility, adverted to by Anonymous Liberal here, is that the defense of the NSA program is premised on the same legal arguments as Assistant Attorney General John Yoo's (in)famous but as yet undisclosed March 14th, 2003 legal memo, which Marty has described here.

As best we can tell, that memo-- which probably dealt with the Uniform Code of Military Justice and the Federal assault statute-- offered an extremely strong Article II argument which authorized the President to disregard statutes (including criminal laws) that he felt interfered with his authority as Commander in Chief. That memo was disavowed by Jack Goldsmith (and others) at the OLC in December 2003; but, notably, the constitutional claims made in Yoo's memo were never specifically disavowed by the Administration, and, indeed, Attorney General Gonzales dodged the ultimate legal question of the President's Article II authority to disregard criminal statutes when it was posed to him at his confirmation hearings.

The Justice Department's current position is twofold. First, it argues that Congress's September 18th, Authorization for the Use of Military Force (AUMF) provides the President with all the authority he needs to conduct surveillance of American citizens. Second, it retains a modified version of Yoo's Article II on steroids theory-- so that the AUMF is actually unnecessary to justify surveillance-- but the argument has now been made more complex. It is now posed as the claim that one should construe FISA and the AUMF as in perfect harmony with each other and with the President's Commander-in-Chief powers under Article II so to avoid possible constitutional problems. (It also argues, however, that if the constitutional question is not avoided, FISA is *unconstitutional* to the extent it interferes with the Commander-in-Chief power).

If all this is true, why can't we see the March 2003 memo? One likely reason is that if the original basis for the NSA program was indeed Yoo's Executive power on steroids theory, it would be extremely embarrassing to the Administration. First, the theory as Yoo originally proposed it has no logical stopping point. Second, were the original memo to see the light of day, it would make clear that the full throated version of the theory-- that the President is not bound by criminal laws when acting as Commander-in-Chief-- was never, in fact, disavowed by the OLC or by the Administration. One can only imagine the political fallout from such a revelation. It would put, for example, the President's signing statement accompanying the McCain Amendment in a particularly bad light.

But political embarrassment is not a sufficient reason to stonewall when constitutional theories this radical are driving the Executive's actions. It is incumbent on the Administration to state its constitutional claims forthrightly and have them debated publicly, rather than to concoct them surreptitiously and direct its employees and agents to disregard federal law on the sly. If the members of the Administration secretly believe that the Commander in Chief power cannot be constrained by criminal laws-- particularly those limiting domestic surveillance-- the American public needs to know the sort of people in whom it has entrusted Executive power.

Besides endorsing the full-throated article II on steriods theory, I suspect that the Yoo surveillance memo is embarrassing to the Administration because it fails to articulate the AUMF-based argument on which the Administration now primarily relies. Based on the administration's public statements around the time the Patriot Act was passed (roughly six weeks after the AUMF--see my blog for the actual quotes), I'm guessing that it hadn't yet occurred to the administration to claim that the AUMF amounted to statutory authorization for extra-legal surveillance. I suspect that releasing the memo would make it clear that that particular argument is nothing more than a post-hoc rationalization.

I agree with Prof. Balkin’s analysis, especially the “look bad” part. Knowing how legally inconsistent John – Voodoo Law – Yoo’s other infamous memos have been, it doesn’t seem unreasonable to believe that the Bush Administration fears that reliance upon a similarly baseless legal interpretation for a massive infringement of civil liberties could be considered something more than just an incorrect interpretation of the commander-in-chief’s authority. I mean, if Marty Lederman et al.’s rebuttal of the post-hoc “white paper” drafted up by the DOJ makes the latter sound like some dictator’s justification of why his banana republic isn’t mature enough for a separation of powers, imagine the impression that Yoo’s memo could leave on the congressmen (and the public) at the forthcoming hearings. In any case, I don’t see an impeachment coming. The war presently going on is much less unpopular than Vietnam, and the number of US victims is also much less. The dems won’t go for it, even if legally it certainly looks like a slam-dunk.